Bilski: Patent Statute Does Not Foreclose Patenting Business Methods

Bilski et al. v. Kappos, slip op., No. 08-964, 561 U.S. ____ (Jun. 28, 2010)

In Bilski v. Kappos, the Supreme Court affirmed the U.S. Court of Appeals for the Federal Circuit's decision, holding that claims describing "a series of steps instructing how to hedge risk" and their associated mathematical formula are not eligible for patent protection under 35 U.S.C. § 101 (link to opinion). But in an opinion reminiscent of KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007), the Court found the Federal Circuit's doctrine to be too rigid and not in line with Congressional direction under the Constitution or the Court's precedent. The Court demoted the "machine-or-transformation" test from the sole test to a "useful and important clue, an investigative tool, for determining whether some claimed inventions are processes under § 101," and more importantly, found that a "categorical exclusion of business method patents" does not exist. In short, the Court echoed its